IT DOES NOT MATTER HOW BIG YOUR BRAIN IS IF YOUR HEART IS WRONG

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Dinah Rose QC apologises to court for handing Sumption letter to press
11 February 2010 | By Katy Dowell
Blackstone Chambers’ Dinah Rose QC was forced to apologise to the country’s most senior judiciary after it emerged that she passed a vital letter relating to the Binyam Mohamed torture case to the press.
The letter, written by foreign secretary David Milliband’s counsel Jonathan Sumption QC of Brick Court Chambers, complained to the Court of Appeal about the criticisms of MI5 contained in the Mohamed judgment.
While the letter resulted in the judgment being amended, it was not sent to the other counsel involved in the case and they were not informed that the draft judgment had been changed until Tuesday morning. This was one day before the judgment was made public.

Rose (pictured), who was instructed by Leigh Day partner Richard Stein to represent Mohamed, was forced to apologise to the Lord Chief Justice Lord Judge, the Master of the Rolls Lord Neuberger and president of the Queen’s Bench Division Anthony May after it emerged that she had passed the letter to the press after the judgment was handed down.
According to a source close to the case, Rose and Leigh Day had fired off a protest letter alerting other counsel involved in the case to Sumption’s letter. Blackstone’s Michael Belloff QC and Thomas de la Mare, Doughty Street’s Gavin Millar QC and Geoffrey Robertson QC, were all unaware of the amendments until they received Rose’s letter late on Tuesday afternoon.
On Wednesday morning Sumption and Neuberger MR both referred to the submission in court, but at this stage the press was unaware of what they were talking about.
It is understood that when questioned outside the Court of Appeal, Rose made it clear that a submission had been written by the Government’s lawyer and she handed copies of the letter out.
When she returned to a press-free court Judge LCJ questioned her conduct, to which she asserted: “There’s a time when advocates need to take a stand.”
Judge LCJ said he was “astonished” by this, but added: “You’ve apologised to the court and the less said about this matter the better.”
One source commented: “It was clear that Neuberger was embarrassed and was not happy about this getting out. But the submissions had been referred to in open court and if they didn’t want it getting out they should’ve put in place reporting restrictions.”
The existence of the letter was revealed as the Court of Appeal yesterday rejected attempts made by Milliband to prevent publication of seven paragraphs in a judgment that showed MI5 to be complicit in the torture of Rose’s client while he was being held at Guantanamo Bay.
Sumption, who was instructed to act for Milliband by the Treasury Solicitors, was shown a draft of the judgment last week (3 February), as were other counsel involved in the case.
Sumption then wrote to Neuberger MR requesting that certain parts of the judgment be redacted to prevent prejudiced reporting in the press. While copies of the letter should have been forwarded to all counsel involved, this did not happen.
In the letter Sumption wrote: “The Master of the Rolls’ observations, which go well beyond anything found by the Divisional Court, constitute an exceptionally damaging criticism of the good faith of the Security Service as a whole.
“In particular, the suggestion that the court should distrust any UK Government assurance based on the service’s advice and information will unquestionably be cited in other cases and, if applied more widely, would mark an unprecedented breakdown in relations between the courts and the executive in the area of public interest immunity.”
All parties will make submissions to the Court of Appeal by the end of the week explaining why the redacted paragraphs should be published in full. Sumption will have until Tuesday next week (16 February) to respond on behalf of the Government.
The counsel
Brick Court’s Jonathan Sumption QC, Blackstone Chambers’s Pushpinder Saini QC and 11KBW’s Karen Steyn were instructed by the Treasury Solicitors to represent Secretary of State for Foreign and Commonwealth Affairs David Milliband.
Blackstone Chamber’s Dinah Rose QC, Ben Jaffey and Tom Hickman were instructed by Leigh Day & Co partner Richard Stein to represent Binyam Mohamed.
Blackstone Chamber’s Thomas de la Mare and Charter Chamber’s Martin Goudie were instructed by the Treasury solicitor’s Special Advocates Support Office as special advocates for Binyam Mohamed.
Doughty Street’s Gavin Millar QC and Guy Vassall-Adams were instructed by The Guardian lawyer Jan Johannes for Guardian News and Media, British Broadcasting Corporation, Times Newspapers, Independent News and Media and The Press Association.
Doughty Street’s Geoffrey Robertson QC and Alex Gask were instructed by Mark Stephens of Finers Stephens Innocent for The New York Times, The Associated Press, the Washington Post, the LA Times and Index on Censorship.
Blackstone Chamber’s Michael Beloff QC was instructed directly by Liberty and Justice.
Readers' comments (8)
• Robert Morgan | 11-Feb-2010 11:14 pm
So much for the Rule of Law and independence of the judiciary. Since when does the Government dictate to the courts what may or may not be included in their judgments? This case is disturbing not only because Sumption QC's letter was not copied to all the other Counsel, as it should have been, but, more fundamentally, because the Court acted immediately on Sumption QC's complaint, without inviting submissions from the other Counsel. This is a basic procedural requirement, as even a law student would know.
Court displays lack of judgment in relation to judgment. Oh dear.
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• Anonymous | 12-Feb-2010 8:28 am
Dinah rose has nothing to apologise for: the letter was referred to in Open Court. Why shouldn't the public know that the government was attempting to water-down the judgment. It was a sneaky letter and must have been sent secretly on instructions Sumption should be ashamed.
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• Anonymous | 12-Feb-2010 9:56 am
far from apologising dinah neds to be appluded. somption's conduct is very sad
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• Anonymous | 12-Feb-2010 1:22 pm
Read what Joshua Rozenberg has to say in this in his blog, quoted below:
False 'Sumptions
Jonathan Sumption QC may have a brain the size of a planet but that hasn't stopped his clients in the British government from distancing themselves from the infamous letter he sent to three senior appeal judges on Monday.
In an unprecedented move, the Director General of MI5 has written a newspaper article insisting that the Security Service "co-operates willingly" with the parliamentary Intelligence and Security Committee.
The suggestion that "officials of the service deliberately misled Intelligence and Security Committee" came in Sumption's letter inviting the judges to remove paragraph 168 of their judgments in the Binyam Mohammed case. Ironically, the whole point of the court's ruling was that seven paragraphs should not have been removed from an earlier judgment.
Exactly what Lord Neuberger said in the original version of paragraph 168 is not in the public domain; the Master of the Rolls modified his draft before giving judgment on Wednesday. But several sources have told me that Sumption exaggerated its effect when he described the paragraph as, for example, "an exceptionally damaging criticism of the good faith of the Security Service as a whole".
The over-egging comes naturally; Sumption is a powerful advocate and he has simply put his case at its highest. His assertion that Lord Neuberger's observations "are likely to receive more public attention than any other part of the judgments" would probably not have been true if he had not drawn attention to them.
Worse than this, though, is the thinly-veiled attack on his opponent, Dinah Rose QC, that has appeared on the Lawyer website. The magazine reports that she was "forced to apologise" to the court "after it emerged that she had passed the letter to the press after the judgment was handed down".
In fact, Rose was fully entitled to make copies available to reporters once the letter had been discussed in open court.
Rule 31.22 of the Civil Procedure Rules 1998 says:
(1) A party to whom a document has been disclosed may use the document only for the purpose of the proceedings in which it is disclosed, except where
(a) the document has been read to or by the court, or referred to, at a hearing which has been held in public...
The rule goes on to say that the court may restrict publication at the request of a party. But no such application was made by Foreign Secretary's counsel Pushpinder Saini QC. Sumption himself was not in court for the hearing on Wednesday.
The onus was on Sumption or Saini to request confidentiality, not on Rose to seek the court's consent for acting on instructions. Her apology to the court was a courtesy, not an admission of wrongdoing.
Nobody emerges well from this episode. The judges appeared distinctly edgy on Wednesday but they were entitled to assume that a letter marked "cc Dinah Rose QC" would have been shown to her at the same time as it was shown to them. They were also entitled to assume that a letter sent to them by one party to a case would be circulated to all other parties. Neither of these happened.
The court has asked for written representations on whether paragraph 168 should be published as originally drafted. In the interests of his clients, Sumption should support publication. And if he really wants to write Lord Neuberger's judgments for him, he should resign from the Judicial Appointments Commission and apply for a job on the High Court Bench. Who knows where he might end up?
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• Kathy Gregory | 12-Feb-2010 2:44 pm
Dinah Rose mentioned CPR 31.22 when the court reconvened-Had Mr Rozenberg left the building at that stage? Lord Neuberger responded as follows:
"So are you saying that my draft judgment is a public document? It was also mentioned in court this morning"
Noone emerges with credit. Indeed it is astonishing that experienced leading counsel have conducted themselves in this way-eg Jonathan Sumption QC's misleading 'cc' and an obvious attempt to have a private dialogue with the judge -A BCC pupil wouldn't last long if they attempted to use that tactic.
As the 6 February 2010 letter refers to the draft judgment , it should have been obvious to leading counsel that it could not be disclosed at that stage.
The authorities are clear on this point:
"It is apparent that very good reasons are required for departing from the normal rule of publicity. In the present case such good reasons have, in my view, been shown. The documents in issue are closely related to the very subject matter which the Claimant is seeking to protect by means of this action for breach of confidence. In my judgment, and for the reasons I have given, the Claimant has established at this stage at least an arguable case that they contain private confidential information of a sensitive nature. " HRH the Prince of Wales v Associated Newspapers Ltd [2006] EWHC 11 §15
Lord Judge agreed with Ms Rose that advocates can take stands "if justified" but did not seem to agree with her view that it was justified on Wednesday morning.
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• Dobbings | 12-Feb-2010 10:23 pm
Its always been my understanding that the letter should have been disclosed to ALL the parties BEFORE the handing down so that they might put forward their views.
Therefore if anyone has made a mistake it's (dare I say it) the Master of the Rolls
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• Anonymous | 13-Feb-2010 8:32 pm
To CC or not CC - was it a conspiracy or a cock up? Sometimes when I look for conspiracies I find cock ups.
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• Barry Sterr | 18-Feb-2010 9:25 am
"So are you saying that my draft judgment is a public document? It was also mentioned in court this morning"
Lord Neuberger MR may have forgotten that his draft was subject to an express embargo imposed by, er, him. Not so the letter, which had been mentioned in open Court by counsel representing HMG. I nonetheless think that Ms Rose QC may have pounced rather too rapidly, given the particular context of the discussion. I doubt that Mr Saini QC (who always plays a very straight bat and is blameless in all this) intended his passing reference to the letter in the course of arranging for submissions to be made on its content to have the effect which it did.
I think that the story reflects somewhat poorly on Mr Sumption QC for seeking to dictate terms to the Court after the close of argument, and on the Court for allowing itself, even on an interim basis, to be dictated to. As for harming the relationship between the executive and the judiciary, that harm has been wrought already by the executive's contempt for constitutionality and the rule of law, demonstrated over many years and under successive administrations, but particularly acutely in the very recent past.
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